Making Change at Walmart (MCAW) is a campaign that works to strengthen our economy and working families by demanding Walmart improve policies in pay and working conditions. In the days leading up to Black Friday, routinely the busiest shopping day for Walmart and other retailers, MCAW and local Walmart workers are protesting and holding Walmart accountable. In the guest blog below, Walmart worker Cantare Duvant describes what the campaign is demanding, how advocates are standing up, and how you can get involved.

By Cantare Duvant

I’m a 30-year old part-time Customer Service Manager at the Apple Valley Walmart store in Minnesota.

This November, I’ve been standing up with my fellow workers and members of OUR Walmart—an organization of current and former Walmart associates—for change at America’s largest private employer.

It’s time for Walmart and the Waltons—America’s richest family—to finally pay their associates a living wage of $15 an hour so that American taxpayers no longer have to subsidize Walmart’s workforce when they end up on welfare or food stamps, because they don’t earn enough to survive.

Associates also need access to full-time hours. Even those of us who make closer to $10 an hour can’t make ends meet when we are only given 16 hours a week to work—like me.

…let’s take a moment to think about the workers at Walmart who will be out on a picket line on Friday – or forced to work on Thanksgiving night – while we enjoy our time with friends and family. AFJ’s Bolder Advocacy Blog has been spotlighting the campaign for justice at Walmart.Check out these two recent posts.This one offers and overview of the campaign, and how all of us can help:

This Friday, the nation’s biggest shopping day, thousands of Americans will be calling on Walmart to improve working conditions at its stores and warehouses. TheBlack Friday day of actionis the culmination of a wave of worker activism that started in October with anhistoric walkout in Los Angeles.

Good jobs are the cornerstone of a strong, healthy economy. A good job is one where workers have collective bargaining rights, employment security, and wages and benefits that allow their families to enjoy a decent standard of living. Thus, organizing to transform the economy means organizing to transform work into permanent, secure jobs where workers have dignity and respect.

The many complaints against Walmart include widespread discrimination against women. The current protests are needed in part because the Supreme Court failed the women of Walmart when they ruled against them in a class-action suit. The Walmart case is among those featured in AFJ’s documentary Unequal Justice: The Relentless Rise of the 1% Court.

On Tuesday, Sarita Gupta, executive director of Jobs with Justice and American Rights at Work will discuss the Walmart campaign at the formal premiere of Unequal Justice in Washington. She’ll be part of a panel that also includes AFJ President Nan Aron, Pam Gilbert, former executive director of the U.S. Consumer Product Safety Commission and Linda Lipsen, CEO of the American Association for Justice. The event is free, and there’s still time to register here.

AFJ worked with The Nation on a special issue devoted to “The 1 Percent Court” – available online starting Sept. 19 and on newsstands starting Sept. 20. The issue includes an article by AFJ President Nan Aron outlining specific action steps the legal community and the public at large can take to pry the thumb of big business off the scales of justice. This weekend, Nation editor Katrina vanden Heuvel previews the issue on the public television series Moyers & Company. Check their website for the date and time in your area.

When Chris Kwapnoski worked at Sam’s Club, a Wal-Mart affiliate, managers told her that she needed to “doll up” and “blow the cobwebs off” her makeup if she wanted to get ahead. At the same time, a male associate was given a larger raise because he had “a family to support,” even though at the time Chris was a single mother raising two young children.

And when Chris and more than a million other women joined together to hold Wal-Mart accountable for the discriminatory pay and promotion practices of its management, the Supreme Court told them that Wal-Mart was too big to sue.

In Wal-Mart v. Dukes, a narrow majority of the Court ruled that the 1.5 million women who faced systemic discrimination as Wal-Mart workers did not have enough in common to qualify for a class action, ignoring the volumes of anecdotal and statistical evidence to the contrary. And because of the Wal-Mart decision, it is now harder for employees and consumers to band together to fight corporate misbehavior. The Court significantly raised the bar for forming a class, which is one of the only effective ways to fight against widespread injustices committed by large, deep-pocketed corporate interests.

Class-action lawsuits are a powerful tool for employees and consumers to fight for their rights against major corporations. However, thanks to the Supreme Court’s 2011 decision in Wal-Mart v. Dukes, which raised the threshold for the certification of class-action lawsuits, perhaps the correct way to have begun this post would be “Class-action lawsuits were a powerful tool.”

The tide against class-action lawsuits was never more resounding than in Wal-Mart. One year ago, the Supreme Court reversed the lower court’s grant of class certification, after female employees of Wal-Mart tried to bring a class-action lawsuit under Title VII of the Civil Rights Act of 1964 against the mega-corporation for consistently promoting and paying higher salaries to male employees. The employees presented facts showing that 70 percent of Wal-Mart’s hourly jobs are filled by women, while only a third of management positions are. Additionally, women are paid less than their male counterparts from day one and over the course of their employment (read our study here). The Court’s decision not only affected the rights of the one million current and former female Wal-Mart employees whose interests were at stake in the suit, but radically re-wrote the federal rules on class certification with implications for millions of other plaintiffs or would-be plaintiffs.

In Wal-Mart, the Court changed the commonality standard from an “easily satisfied” bar to one requiring that common issues “predominate.” The Court held that a discretionary management system that has produced disparity does not satisfy the new stricter standard. The new commonality standard means that to move forward as a class-action lawsuit, the claims must

depend upon a common contention of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. . . . What matters to class certification [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.

Now not only must plaintiffs be affected by a decision made by high-level corporate executives (rather than by lower management), but the higher-ups’ decision-making must also be conscious and intentional. Needless to say, the Wal-Mart case has far-ranging implications for fighting sex discrimination in the workplace and for class-action litigation across the board.

There are many reasons why class-action litigation is an important vehicle for the vindication of civil rights. In cases involving systemic discrimination, each plaintiff’s case becomes stronger when seen in the aggregate. Furthermore, a wide-scale lawsuit can improve the lot for more employees (or consumers, as the case may be) and so is a more efficient means of delivering more justice than individual suits. Finally, a class action can affect a corporation’s bottom line in a way that individual litigation is unlikely to, and thus class actions are more likely to inspire improvements in corporate behavior.

In the wake of Wal-Mart, several circuits have prevented class-action lawsuits from moving forward. The Fifth and Second Circuits have followed language in Wal-Mart rejecting class-action lawsuits in which plaintiffs claim separate, individual damages, while the Ninth and Eighth Circuits have focused on Wal-Mart’s heightened commonality requirement.

In a troubling decision, Bennett v. Nucor Corporation, the Eighth Circuit affirmed a lower court’s dismissal of a suit, finding that the plaintiff employees failed to meet the commonality requirement under Wal-Mart. In that case, African-American employees at an Arkansas steel mill attempted to bring a class-action lawsuit for racial discrimination against their employer under § 1981 and Title VII. The court found that the employees did not speak for the entire plant because they only worked in one of five departments of the plant, where Confederate flag-style “do-rags” were sold in the company store, actual Confederate flags and nooses were publicly displayed, and racial comments were communicated over the radio, in e-mails, and scrawled on the equipment and in bathrooms.

Some courts, including the Third, Fourth, Sixth and Seventh Circuits, have distinguished Wal-Mart in cases against the De Beers and Hearst corporations, among others. In one of the most publicized post-Wal-Mart decisions, McReynolds v. Merrill Lynch, decided in February of this year, Judge Posner of the Seventh Circuit wrote for a three-judge panel that African-American financial advisors for Merrill Lynch could bring a class-action lawsuit under Title VII and § 1981 because the issue of disparate impact on African-American employees was appropriate for class-wide treatment.

Posner came to this conclusion by distinguishing Wal-Mart. In Wal-Mart, corporate policies formally forbade sex discrimination and assigned hiring decisions to local managers. However, in Merrill Lynch, the Seventh Circuit took issue with two corporate policies: the “teaming” policy and the “account distribution” policy. The teaming policy permits brokers to form their own teams, which in turn are supposed to improve client services. The account distribution policy permits brokers to compete for the clients of departing brokers, based largely on past successes. This is an important distinction because Merrill Lynch’s policies were created in the higher echelons of management — not by local managers — and facilitated discrimination in that the African-American employees claimed that they were less likely to be selected for teams or distributed-accounts.

Meanwhile, the Wal-Mart plaintiffs have re-filed as regional classes in California and Texas courts and intend to continue pursuing their important claims.

Although some lower courts are allowing class actions to proceed under the Wal-Mart standard, the Corporate Court may not be done with rewriting the class certification rules. Just last week, the Court agreed to hear Comcast v. Behrend during its next term, in order to address the question of what issues that bear on the merits of the case must be resolved at the class certification stage. If the Court reverses the Third Circuit’s plaintiff-friendly holding in this case, it will be erecting yet another barrier to justice for everyday Americans.

On Wednesday, June 20th about fifty people gathered in front of the United States Supreme Court to speak out against the Court’s 2011 decision in Wal-Mart v. Dukes, which drastically changed the process by which employees could group together to challenge employment discrimination. The crowd, organized and coordinated by the American Association of University Women, was joined by many organizations including NOW, Alliance for Justice, and National Partnerships for Women and Families. People a block away could hear chants of, “What do we need? FAIR PAY! When do we need it? NOW!”

Betty Dukes joins the crowd outside the Supreme Court building

The crowd was further roused when Betty Dukes, the lead plaintiff in the original case, stepped forward to address the group of protesters.

Although the Supreme Court last year ruled in favor of Wal-Mart and said that the women harmed by the retail giant’s discriminatory practices could not band together in a class action, Dukes spoke words of encouragement and triumph to the crowd: “We have to continue to fight to make a stance for righteousness and justice for women everywhere.”

Dukes told supporters that she will remain “determined to stand up, step forward, and speak out.” Recently, she launched her own website, bettydukesvoice.com, to serve as a platform for her advocacy efforts.

Although the rally centered on the anniversary of the Wal-Mart decision, it also served as a platform to present the Equal Employment Opportunity Restoration Act, legislation designed to restore the rights of workers and their ability to stand together to challenge discrimination. The bill was unveiled by Senators Al Franken (D-MN) and Richard Blumenthal (D-CT) and Representatives Rosa DeLauro (D-CT) at a press conference following the rally.

As of Wednesday, June 20 the bill had 22 co-sponsors in the United States Senate and 36 co-sponsors in the United States House of Representatives.

One year after the Wal-Mart decision, Congress is making an effort to correct and amend the challenges imposed by the Supreme Court, organizations continue to fight and build momentum for equality and justice for all workers, and ordinary citizens are taking steps to move on the side of justice. It is uncertain if legislation such as Equal Employment Opportunity Restoration Act or the Paycheck Fairness Act will be enacted by Congress; however, it is certain that the movement will continue to build more support for employee rights and equality under the law.

Representing a class of 50,000 current and former female employees of Wal-Mart and Sam’s Club stores in Texas, plaintiffs have filed an amended complaint (.pdf download) in district court in the Northern District of Texas. The complaint alleges that Wal-Mart engages in widespread gender discrimination against its female employees throughout Texas in its pay and promotion policies and practices.

This is the second regional lawsuit that plaintiffs have filed against Wal-Mart, following the June 2011 decision in which the Supreme Court reversed a lower court’s certification of a class of 1.5 million current and former female Wal-Mart employees nationwide. In that 5-4 decision, Wal-Mart v. Dukes, the Supreme Court issued new guidelines for class actions and Title VII Civil Rights Act employment discrimination cases, and held that the Wal-Mart plaintiffs had failed to meet the requirement that the class have a question of law or fact in common.

According to the plaintiffs’ attorneys, “Evidence in the case shows that women who hold salaried and hourly positions in the Texas stores have been paid less than men in comparable positions, although on average the women have more seniority and higher performance ratings than men.” They note in addition that “[w]omen in Wal-Mart’s Texas stores also had a much lower chance of being promoted than men, and those who did get promoted waited significantly longer for job promotions.”

Plaintiffs’ attorneys plan to file many similar suits against the giant corporation, alleging long-standing, widespread discrimination against Wal-Mart’s female employees in pay and promotion.

Although the Supreme Court in June ruled against plaintiffs who sued Wal-Mart for sex-based employment discrimination, those plaintiffs today filed an amended lawsuit narrowing the class from all of the women who work or have worked at Wal-Mart and Sam’s Club stores (an estimated 1.5 million), to those in the retailer’s California regions (an estimated 45,000 current employees and 45,000 former employees).

In its June decision, which split 5-4, the Supreme Court did not decide whether or not Wal-Mart had discriminated, but rather held only that the plaintiffs had failed to meet the requirement that the class have a question of law or fact in common.

Plaintiffs’ attorneys plan to file many similar suits against the giant corporation, alleging long-standing, widespread discrimination against Wal-Mart’s female employees in pay and advancement.

AFJ is counting down the 10 worst decisions of the Corporate Court’s 2010-11 term. Yesterday at #3, we talked about Janus Capital v. First Derivative, which gives mutual-fund bosses “an easy way to skirt class-action lawsuits.”

In our tie for the #1 slot, one of the contenders had an enormous and immediate impact on more than a million women in the workforce, and opens the door for discrimination on a massive scale.

In Wal-Mart, the Supreme Court prevented more than a million women from banding together to pursue their case against the discriminatory practices of Wal-Mart management. The 5-4 majority rewrote the federal rule governing class actions by setting a higher “commonality” threshold for all plaintiffs. This will likely bar employees from seeking injunctive relief that previously only needed to pass an “easily satisfied” test.

The majority created new hurdles for disparate-impact cases, where subjective personnel decisions have led to widespread gender or racial disparities in the workforce, by holding that “proving a … disparity is not enough,” and rejecting plaintiffs’ overwhelming statistical evidence of widespread discrimination. The majority instead suggested that victims must prove that conscious and intentional discrimination by top management directs the employment decisions made below in order to obtain class certification. These nearly impossible standards will undermine the incentive for employers to set up objective pay and promotion practices based on published criteria and clear merit-based evaluations of applicants. These practices are very effective at combating the kind of discrimination that occurred at Wal-Mart, where job postings were non-existent and women had to wait for the “tap on the shoulder” (that mostly never came) from mostly male managers to be promoted.

The majority also elevated the company’s written non-discrimination policy to exalted status – despite a complete lack of evidence that it was followed – and assumed that “most managers in any corporation … would select sex-neutral, performance-based criteria for hiring and promotion.” The 120 affidavits from women being called “Janie Qs’” at executive meetings, being paid less than a just-hired 17-year-old boy because “you aren’t male, so you can’t expect to be paid the same,” or told to “doll up” and “blow the cobwebs off” make-up were dismissed as “prov[ing] nothing at all.”

Wal-Mart v. Dukes is the one of the worst decisions of the 2010-11 Corporate Court term because it will allow corporations to get away with discrimination as long as they discriminate on a massive scale.

Last week the Michigan Messenger reported that a Michigan judge cited Wal-Mart v. Dukes in a decision denying class certification for plaintiffs suing Dow Chemical. The plaintiffs claim that a Dow plant released dioxin, a highly toxic carcinogen, into local rivers and lakes. The trial judge in the case previously approved class certification for local residents but stated that Wal-Mart required him to reverse his ruling.

As AFJ noted in a report reviewing the Corporate Court’s 2010-11 term, polluters are not the only corporate defendants cheering the Wal-Mart ruling. African American, Latino and female employees alleging discrimination on the part of retailer Best Buy were forced to agree to an early settlement, fearing a pro-corporate ruling after the Wal-Mart decision. A lawsuit against Costco that was held up pending the Court’s ruling will face much tougher sledding despite strong statistical evidence.

Wal-Mart could also threaten the viability of pending gender discrimination class actions against Goldman Sachs, Toshiba, and Cigna. In addition, mortgage lenders accused of defrauding borrowers could enjoy a stronger shield against accountability.

When the Supreme Court ruled in Wal-Mart v. Dukes that female employees of the retail giant couldn’t form a class action to hold Wal-Mart accountable for its discriminatory behavior, it was widely seen as a victory not just for Wal-Mart, but for giant corporations across the country. The decision meant that individuals had lost a vital legal tool to level the playing field against the power of corporations in the courtroom.

A Saginaw County judge ruled this week that a recent U.S. Supreme Court decision means that property owners in the dioxin-contaminated Tittabawasee floodplain cannot sue Dow Chemical for damages in a class action.

Operations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals,through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.

…

Since 2003 a group of about 150 Tittabawassee property owners have been trying to sue Dow as a group on behalf of the more than 2,000 people with property in the floodplain.The plaintiffs claim that they are not able to fully use their properties because of the contamination and that their properties have lost value. Dow has acknowledged that the dioxin contamination came from its operations but insists that it is not harmful to residents.

In the battle over certification of class status Dow has argued that because the level of pollution on the contaminated parcels varies, the property owners should not be treated as a group.

The Wal-Mart decision raised the bar for what could be considered a “class” and thus made it more difficult for individuals to band together to fight corporate overreach and misbehavior. Dow’s lawyers took advantage of the Supreme Court’s corporate giveaway, and property owners in Michigan are paying the price.

Among the witnesses was Betty Dukes of Pittsburg, CA, a seventeen year veteran employee of Wal-Mart and lead plaintiff in the gender discrimination case broken up by the Court last week. Dukes remains upbeat in her hope that, even without the ability to fight Wal-Mart as a unified class, women subjected to the retail giant’s discriminatory culture and practices will one day obtain justice. However, she testified that many women will give up because it’s too hard to fight the company alone, and especially difficult to fight one’s own employer.

Professor Melissa Hart of the University of Colorado Law School testified to the common threads between the Wal-Mart and AT&T decisions. In both cases, the same five-vote majority of the Supreme Court interpreted procedural rules in ways completely different from their original meaning and with hostility to the class action device. As a result, no court has reached or will be likely to reach the substance of the claims made in those cases. Questioned by Senator Franken, Professor Hart stated that the Court’s interpretation of the Federal Arbitration Act of 1925 was inconsistent with its legislative history and purpose, and that allowing corporations to write class action bans into fine print contracts incentivizes small-dollar rip-offs of hundreds of thousands of hard working people. Franken has introduced the Arbitration Fairness Act in response to AT&T, which would amend the FAA and limit binding mandatory arbitration.

Senator Franken also took to task witness Andrew Pincus, the attorney who represented AT&T before the Supreme Court. Pincus, a partner at corporate defense giant Mayer Brown LLP, wrote in the New York Times and suggested in his opening statement that only plaintiffs’ attorneys looking to rack up huge fees would be hurt by the Court’s ruling. Franken noted that the average partner at Mayer Brown is paid over $1 million per year; Pincus, he said, is in no position to criticize others for a possible financial interest in the workings of the legal system.

Professor James Cox of Duke University School of Law testified on the likely fallout in the financial industry from the Court’s decision in Janus. The narrow and inapt definition adopted by the Court of who can “make” a false or misleading statement will greatly restrict the power of investors to recover damages and enforce anti-fraud laws. Only the Securities Exchange Commission will be able to go after many offenders, and even then there may now be loopholes. But the SEC, Cox explained, has only investigated, much less taken enforcement action, in 17% of resolved securities fraud cases, and it has been hesitant to take action against the biggest Wall Street firms. Connecting back to Wal-Mart, Senator Franken observed that the Equal Employment Opportunity Commission, the government body charged with pursuing workplace discrimination claims and to which many of Dukes’s colleagues may now have to turn, has a backlog of 80,000 claims to hear.

Senator Whitehouse observed that the procedural hurdles, arcane rules, and cramped statutory interpretations that characterize recent Supreme Court decisions might be summed up in two words: “corporation wins.” In closing, he extolled the role of jury in our constitutional design, and lamented the Court’s “steady addition of trouble, toils, and snares” between everyday Americans and their right to have their cases heard by their peers.

In response to the Supreme Court’s decision in Wal-Mart v. Dukes, Senator Robert Menendez (D-NJ) and Representative Carolyn Maloney (D-NY) reintroduced the Equal Rights Amendment on Wednesday, according to the Huffington Post.

The proposed Equal Rights Amendment would amend the U.S. Constitution to explicitly recognize that women have equal rights under the law. According to Representative Maloney’s report, lawmakers first introduced the bill in 1923 during the women’s rights movement. Each year since that date, the bill was reintroduced, finally passing both houses and sent to the states to be ratified in 1972. The bill narrowly missed ratification in 1982, the deadline for states’ approval. Lawmakers have reintroduced it each year since.

“In the year 2011, it is truly an embarrassment for our nation that we still do not have gender equality enshrined in our Constitution,” Representative Jerry Nadler (D-NY) stated in a press release. “This profound omission undermines our standing as a nation committed to freedom and equality for all.” At this time, 160 members of Congress are sponsoring the bill.

Even in 2011, the struggle for equal treatment of men and women continues. Alliance for Justice’s special report notes that women’s average pay does not reach that of men. Even though Congress passed Title VII of the Civil Rights act of 1964 to outlaw employment discrimination, women still make only 77% of what men make, on average. Over her lifetime, a woman with a high school education will make $700,000 less than a man with the same education level. A woman who graduates from college will make $1.2 million less than her male counterpart, and a woman with a professional school degree will make $2 million less.

The need for the Equal Rights Amendment is clearer than ever after the Supreme Court’s decision on Monday in the Wal-Mart case. The Court blocked a sex discrimination suit brought by at least one million female Wal-Mart employees. The majority held that these women did not constitute a certifiable class and thus could not bring a class action lawsuit. As a result, these women will not be able to ban together as a group to hold the corporation liable for its discriminatory practices.

After Wal-Mart, everyday Americans will have greater difficulty holding large corporations accountable for their actions. The decision raised the threshold for forming a class, and class actions are often the best way for plaintiffs to bring large corporations to account. The Court has sent a message that it will protect big businesses from challenges to their unfair practices.

Today the Supreme Court handed down its decision in Wal-Mart v. Dukes. At stake was the ability of a large group of women to join together in fighting sex discrimination in the workplace.

The Court decided 9-0 in favor of Wal-Mart that the class could not make its claim for back-pay under the particular Federal Rule of Civil Procedure used by the trial court. However, the Court split 5-4 in favor of Wal-Mart in holding that the class did not meet the basic requirement of “commonality” to form a class at all.

Betty Dukes, a greeter at a northern California Wal-Mart, alleged gender discrimination in a lawsuit filed in 2001. Dukes and other named women plaintiffs sought to certify a class action consisting of female employees who worked for Wal-Mart after December 26, 1998. Their allegations were that Wal-Mart’s employment policies and business culture have resulted in severe discrimination against women for many years.

The question before the Supreme Court was whether class certification was proper, which turned in large part on perceptions of who is to blame for the wide disparity in pay and promotion levels between men and women working for Wal-Mart. Wal-Mart argued that there is no common bond between thousands of pay and promotion decisions made by its managers across the country. Plaintiffs countered that Wal-Mart’s system of granting vast pay and promotion discretion to its upper-level managers, nearly all of whom are men trained by Wal-Mart to embrace and promote the company’s practices, yielded discriminatory results that pervade every region and nearly every store within Wal-Mart’s vast retail empire.

Although the Court unanimously decided the class action vehicle chosen by the plaintiffs (Rule 23(b)(2)) was improper – because plaintiffs sought monetary compensation under a rule designed for injunctive relief – the Court divided 5-4 over the fundamental issue of whether the women of Wal-Mart had enough in common to qualify for a class action under a different section of the rules (Rule 23(b)(3)). Over the forceful objection of four justices, led by Justice Ruth Bader Ginsburg, the Court’s conservative majority made it much more difficult for large businesses to be held accountable for their actions, this time by significantly raising the bar for forming a class, which is the only effective way to fight against widespread injustices committed by large, deep-pocketed corporate interests.

“The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture,” wrote Justice Ginsburg in dissent. “Women fill 70 percent of the hourly jobs in the retailer’s stores, but make up only ’33 percent of management employees.’ [W]omen working in the company’s stores ‘are paid less than men in every region’ and ‘the salary gap widens over time even for men and women hired into the same jobs at the same time,” she added. Justice Antonin Scalia and the others in the majority managed to ignore this voluminous anecdotal and statistical evidence in finding for Wal-Mart. Our separate Wal-Mart report details much of this evidence.

The new threshold established by the Court’s five conservative justices imported Rule 23(b)(3)’s requirement that common issues “predominate” into the initial determination whether any class-action can proceed. This will have the perverse effect of inhibiting other class actions that rightfully could proceed under Rules 23(b)(1) or (2), where such a requirement previously did not exist. The longstanding rule had been that a common question of law or fact was easily met. No longer. The five conservative justices reinterpreted the rules to require class members to provide “substantial proof” that, in a Title VII claim, a particular policy existed that led to the alleged discrimination. The Court then evaluated the quality of the evidence of discrimination presented by Dukes and rejected the expert analysis of Wal-Mart’s “strong corporate culture” as inconclusive as to cause, the company-wide statistics as irrelevant to regional and store-based decisions, and the numerous anecdotes from all 50 states as insufficient given the size of the whole company. In practice, it seems that Wal-Mart is now too big to discriminate.

Justice Ginsburg countered that, under the well-established rule that corporate practices producing discriminatory results can violate Title VII, Dukes easily met the burden of showing common questions among all female employees of Wal-Mart. “The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.” The practices and culture, as the district court found, were sufficiently similar for the women of Wal-Mart to pursue justice together.

The Court’s sharply divided decision will make it much more difficult for victims of employment discrimination to fight back. By trying the case as a national class, the women of Wal-Mart would have had better access to evidence of pay disparities, would have been better shielded from retaliation, and would have had better access to legal representation in matters that may only involve a little more than a thousand dollars per person. Employers large and small, who, as Justice Ginsburg illustrated, should be discouraged from using wholly subjective pay and promotion regimes, have been given a great incentive to adopt a near-Wild West approach to human resources.

Fortunately, Congress has the power to overrule the Court’s pro-corporate activism. The Federal Rules are written with authority granted legislation, and new legislation can change the Rules and their interpretation. Congress has acted before when the Supreme Court has hindered enforcement of civil rights laws, such as the Civil Rights Act of 1991, part of which overturned Wards Cove Packing Co. v. Atonio, and the Lily Ledbetter Fair Pay Act of 2009, which overturned Ledbetter v. Goodyear Tire & Rubber Co.

ALLIANCE FOR JUSTICE CONDEMNS CORPORATE MAJORITY ON THE SUPREME COURT FOR DEVISING NEW HURDLES TO JUSTICE FOR WOMEN IN WAL-MART CASE

Washington, D.C., June 20, 2011—Alliance for Justice President Nan Aron issued the following statement on today’s decision by the United States Supreme Court in Wal-Mart v. Dukes:

The decision today by a narrow majority of the United States Supreme Court to prevent the female employees of Wal-Mart Stores from banding together to form a class action to fight gender discrimination is just the latest example of the conservative majority’s unrelenting effort to prevent everyday Americans from using the courts to find justice and battle corporate abuses.

Although a narrow portion of Wal-Mart v. Dukes was decided unanimously, the fundamental issue about whether the women of Wal-Mart had enough in common to fight together for justice was not. Over the forceful objection of four Justices, a sharply divided Court has once again made it much more difficult for large businesses to be held accountable for their actions by significantly raising the bar for forming a class. In this case, the Corporate Court has made up new ways to prevent unified action by victims of widespread discrimination by inventing new legal hurdles for the formation of classes and erecting a shield for corporate misbehavior by giving undue weight to the fig leaf of written discrimination policies and ignoring real-world behavior.

This is another in a long series of cases where the conservative majority has used a radical reformulation of the law to erect a wall of privilege and protection around big business and has undermined long-held legal traditions of balance and fairness.

In spite of the willingness of the conservative majority to ignore clear and overwhelming evidence to the contrary, gender discrimination still exists at Wal-Mart and in other corporations. The fight for remedies will go on in the courts and in Congress, not only for Betty Dukes and the other plaintiffs in this case, but for those who believe the law is meant for all Americans and should not be distorted into legal armor for the powerful.

Some may say the earlier you fall behind, the longer you have to catch up. Unfortunately, most women fall behind in earnings right out of the starting block and fight for decades to catch up to their male counterparts. In fact a recent report entitled, Women In America, prepared for the White House Council on Women and Girls, notes, “At all levels of education, women earned about 75% of what their male counterparts earned in 2009.” Forty-eight years after the passing of the historic Equal Pay Act of 1963, the push for pay equity for women continues.

This year, President Obama has declared April 12 as National Equal Pay Day 2011. Equal Pay Day is an annual commemoration of the day when women’s wages finally catch up to those of men from the previous year. Also in commemoration of this date, Senator Thomas Harkin (D-IA) and Representative Eleanor Holmes-Norton (D-DC) have re-introduced the Fair Pay Act. The bill will require employers to provide equal pay for jobs that are comparable in skill, effort, responsibility and working conditions, and it will give workers the information they need to determine when jobs are under-valued.

Senator Barbara Mikulski (D-MD) and Representative Rosa DeLauro (D-NY) have also reintroduced the Paycheck Fairness Act. In the 111th Congress, the Act passed the House (256-163), but was defeated on a procedural vote (58-41) in the Senate. The Act provides incentives for employers to follow the law, empowers women to negotiate for equal pay, and strengthens federal outreach and enforcement efforts. The bill would also deter discrimination by strengthening penalties for equal pay violations and prohibit retaliation against workers who inquire about employers’ wage practices or against those who disclose their own wages. With passage of the Fair Pay Act and the Paycheck Fairness Act, women would take another step forward towards equal and fair pay that they deserve.

Thanks to the hard work of many different organizations, coalitions, and fearless activists like Lilly Ledbetter, women took a progressive step forward with President Obama’s signing of the Lilly Ledbetter Fair Pay Act on Jan. 29, 2009. The fight for equal and fair pay is also currently playing out in the Supreme Court in Wal-Mart v. Dukes, a case where courageous women like Betty Dukes are standing up for their right for equal pay, and for the ability to organize and fight as a class action against a large corporation such as Wal-Mart. Today in local communities across the country, people are commemorating Equal Pay Day by taking action. They are sharing their stories both online and offline, distributing literature about the issue of pay equity and expressing their support for fair pay for women by wearing the color red to symbolize how far women and minorities are “in the red.” In Washington, DC, some activists teamed up to hold a flash mob for equal pay in front of the Lincoln Memorial. Using the hashtag #fairpay, everyone will be able to follow or join in the action on Equal Pay Day on Twitter.

The Supreme Court heard oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. At issue in the case is whether a class consisting of a million or more women employed by a single employer nationwide can be certified in a class action alleging systematic gender-based pay and promotion discrimination.

Outside the Supreme Court building, activists gathered to show their support for the women who have been harmed by the retail giant’s discriminatory practices.

The Supreme Court heard oral arguments today in Wal-Mart v. Dukes, a gender discrimination class action against the retail giant. AFJ’s Justice Watch blog has highlighted specific aspects of the case in daily installments. Today’s final installment summarizes what’s at stake in the case and places it in the context of the Roberts Court’s strong pro-corporate bias.

The ability of the world’s largest retailer, and largest private employer in the United States, to discriminate on a massive scale against its female employees is at stake in the biggest case of the U.S. Supreme Court’s 2010-11 term – Wal-Mart v. Dukes. In Dukes, the district court approved, and the en banc Ninth Circuit Court of Appeals upheld, certification of a class action brought by Betty Dukes and others to hold Wal-Mart accountable for suppressing women’s pay and promotion for more than a decade. Despite detailed findings by the lower court and the lack of a circuit split on the issues in dispute, the Roberts Court accepted Wal-Mart’s appeal.

Powerful corporations like Wal-Mart have consistently enjoyed a home field advantage when litigating in front of the Roberts Court. Since 1953, corporate interests have won just 42 percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice Roberts’ first five years. Just last term, the Roberts Court ruled in favor of the side that the U.S. Chamber of Commerce supported in 13 of 16 cases. The U.S. Chamber, and a wide array of other large corporate interests, have lined up on Wal-Mart’s side in this case.

Why is Wal-Mart v. Dukes so important? When Congress passed Title VII as part of the Civil Rights Act of 1964 to prohibit discrimination in employment, women working full time were paid approximately 59 percent of what men were paid, on average. Today, nearly 37 years later, women are paid only 77 percent of what men are paid. Over an average lifetime of work, this difference will result in a loss of $700,000 for a female high school graduate, $1.2 million for a college graduate and $2 million for a professional school graduate. Working women and their children also experience higher rates of poverty than men, and have a greater need for public assistance to obtain health care, including those working at Wal-Mart.

If our nation’s largest employer – with approximately 1.4 million employees, more than 860,000 of whom are women, a large percentage of whom are women of color – can avoid liability for systemic discrimination across its nationwide chain of stores, it will undermine the equal rights of all women workers. Moreover, any ruling by the Roberts Court that makes it harder for employees to bring a class action will remove an important safeguard that protects workers when they suffer discrimination.

In today’s political climate, corporations are eager to roll back the clock and destroy many of the gains workers made during the Civil Rights era. Wal-Mart v. Dukes could dramatically boost or inhibit those efforts, depending on how the Court rules.

Click here to read more about this landmark case and download AFJ’s comprehensive analysis.

Tomorrow morning, the Supreme Court will hear oral arguments in Wal-Mart v. Dukes, which promises to be the Court’s biggest case of the 2010-11 term.In today’s Huffington Post, AFJ President Nan Aron discusses the merits and implications of the case:

What makes this case so important for all Americans is not just the injustice done to hundreds of thousands of workers, it’s the desire by Wal-Mart and the corporate powers supporting their case… to restrict the ability of the women harmed by these policies to band together as a class and fight a unified battle in court.

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments.

Today we discuss why a denial of class certification would give Wal-Mart and other large corporations a free pass to unlawfully deny employees the wages they deserve.

If the Supreme Court limits access to a class action in this case, it will enable Wal-Mart to essentially rob its women employees of fair wages without serious legal consequences. In fiscal year 2010, Wal-Mart made $14 billion in profits on net sales of $405 billion. Individual sex discrimination lawsuits – even if hundreds were filed and successful – would not motivate Wal-Mart to address disparities in pay and promotions between men and women. Far from being a deterrent, a company as big as Wal-Mart would simply consider isolated awards as the cost of doing business.

A decision decertifying the Dukes class action would also make it more challenging for other plaintiffs to bring class actions, depending on the Court’s reasoning. For example, if the Court finds that the discrepancy in pay and promotion for women at Wal-Mart is not common enough to support a class action on this record, it will tend to exonerate large companies with lots of employees, managers, and outlets. A class action pending against Costco, to cite one case, may turn on the outcome of this case. Other employment discrimination class actions, where the bar is already high, may also become more difficult. Alternatively, if the Court finds that Betty Dukes and her class members cannot obtain back pay through the particular type of class action they have sought to certify, it will cripple one of the most effective remedies that class actions provide.

Proponents of greater restrictions on class action lawsuits claim that the suits are unnecessary because government agencies are responsible for enforcing workplace discrimination claims. Almost all workplace discrimination claims must first be filed with the EEOC before an employee may sue an employer. This, however, does not mean that the EEOC can do much about those claims. The EEOC received 99,992 workplace discrimination allegations in 2010 but filed only 271 enforcement actions in response. (By comparison, there are more than 860,000 women working at Wal-Mart today.) The agency has historically been underfunded and understaffed, resulting in a massive backlog of unresolved cases. As a result, the number of EEOC enforcement actions has decreased every year since 2004 despite the fact that 20,490 more discrimination claims were filed in 2010 than in 2004. Even under full staffing and funding, the EEOC would be woefully incapable of remedying even a small portion of workplace discrimination claims.

Class actions fill a void left by the inadequacy of individual lawsuits and government enforcement. The Supreme Court’s acceptance of Wal-Mart’s appeal in Dukes threatens one of the last remaining tools available to employees to protect themselves from discrimination.

Click here to read more about this landmark case and download AFJ’s comprehensive analysis.

Tomorrow morning, the Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant. This is a landmark case in the fight for a fair America, and could have far-reaching implications for workers everywhere.

Alliance for Justice recently issued a comprehensive report on the background, merits, and legal ramifications of the case. The report is available for download here.

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we discuss the important role class actions play in leveling the playing field for everyday Americans who challenge injustice in court.

If the Roberts Court rules for Wal-Mart and raises the bar for maintaining a class action, the result could be devastating for enforcement of civil rights and employment discrimination laws. Some of the most important civil rights cases in American history were class action lawsuits. Brown v. Board of Education ended racial segregation in public schools in a class action. Griggs v. Duke Power empowered employees to remedy seemingly neutral policies that disproportionately harmed racial minorities. The pollution case portrayed in the movie Erin Brockovich and the sexual harassment case portrayed in North Country were also class actions. Class actions have allowed for historic civil rights gains because of the unique tools they provide to combat discrimination and other forms of corporate misbehavior.

Class actions play an essential role in holding corporations accountable for their widespread unlawful behavior, particularly when the harm suffered by each individual is small relative to the larger discriminatory picture. An individual is far less likely to enforce rights in court if the recoverable damages are too small to justify the cost of lengthy litigation or arbitration, a fact which often allows corporations to get away with unlawful conduct. The Supreme Court has recognized this function:

The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.

As a result of the relative disadvantages of filing an individual claim, most plaintiffs who lose at the class certification stage, and are consequently unable to share the burdens of litigation with a larger class, do not pursue individual discrimination claims. One reason is that the cost of bringing a lawsuit can be much higher than the potential return to individual plaintiffs, resulting in “negative value” claims. For example, the average settlement in a sex discrimination claim deemed by the Equal Employment Opportunity Commission (EEOC) to have merit is $34,200, which is not enough to cover litigation costs and still compensate the plaintiff.

Many individual plaintiffs are also unaware that they have a claim. In the Wal-Mart case, for example, Wal-Mart strictly prohibits employees from discussing pay. It also tends to segregate women and men into different store departments. This keeps employees ignorant of pervasive pay discrepancies throughout Wal-Mart’s system. Even if aware they might have a claim, potential low returns and fear of retaliation keep individuals from seeking compensation when they have been discriminated against. Wal-Mart’s threats of retaliation are well-documented.

Class actions allow plaintiffs to uncover company-wide statistics that provide a more accurate measure of whether the company is engaged in a pattern of discrimination or its conduct has a discriminatory effect. The standard of proof in pattern-or-practice and disparate impact cases is also very different than in an individual lawsuit. In the former, courts look at the overall practices of a company, with plaintiffs carrying the burden of showing that unlawful discrimination has been the regular procedure or policy, or that while fair in form, company policy is discriminatory in operation. In the latter, the focus is on the decisions of management applied to each individual. Statistical evidence is often decisive in class actions, but may be irrelevant in individual lawsuits. Without it, however, discriminatory practices that can be seen in a company overview may remain hidden.

Click here to read more about this landmark case and download AFJ’s comprehensive analysis.

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we discuss how Wal-Mart’s centralized corporate control spreads gender discrimination from headquarters to every region of the United States.

Wal-Mart argues that the plaintiffs’ theory of liability should fail because of Wal-Mart’s sheer size. The company maintains that the large number of its stores, managers, and employees means that pay and promotion decisions “turn[ed] on decisions made by individual store managers” and cannot support the commonality among class members that is required for class certification.

Plaintiffs counter with a powerful narrative that shows how sex discrimination at Wal-Mart was the inevitable byproduct of a strong and centralized corporate system that originated in the company’s Home Office in Bentonville, Arkansas, and permeated each of the company’s stores in the United States.

The key issue here is not the size of Wal-Mart. After all, if the core of an apple is rotten, it does not matter how large the apple is – it is still rotten. The issue is whether Wal-Mart’s employment system perpetuated a male-dominated hierarchy that suppressed women’s promotion and pay throughout Wal-Mart’s thousands of stores. The answer to this question is clearly yes.

Don Soderquist, the company’s former vice chairman and chief operating officer, wrote in his book The Wal-Mart Way that Wal-Mart is “intentional about dispersing our culture throughout the company and determined that our values and beliefs be on the mind of every associate.” Soderquist describes the numerous meetings that occur for employees at every level of the company’s hierarchy and writes that “we have taken advantage of every single one of these opportunities to preach Wal-Mart culture.”

Wal-Mart’s engrained practices are also maintained by promoting from within and requiring people in line to become assistant managers – the lowest salaried management position – to go through a 4-5 month training program at the Walton Institute, where the message is that women are not aggressive enough and would lower standards if promoted to management. Once employees become Store Managers, they are also required to relocate regularly, which spreads Wal-Mart culture but disadvantages women who typically have less flexibility than their male counterparts to relocate suddenly. Sam Walton, the company’s founder, recognized as early as 1992 that this requirement is unnecessary for business purposes and deprives the company of talented female managers, but the policy remains.

Centralized control at Wal-Mart is pervasive. All personnel policies, including compensation and promotion guidelines, are set by the Home Office. Each store has the same job categories, job descriptions, and management hierarchy. Regional management meets at least weekly at the Home Office to discuss developments in individual stores. The company has a sophisticated computer network that allows the Home Office to monitor daily activities at every store. Managers are tied to the Home Office through a computer link called the Manager’s Workbench. The Home Office controls each store’s temperature and mandates what music will be played inside. Wal-Mart also has a strict anti-union policy that it enforces uniformly throughout its stores.

Within the context of this highly uniform corporate structure devoted to pushing the “Wal-Mart Way,” Store Managers, District Managers, and Regional Vice Presidents – more than 85 percent of whom are men, and most of whom have been trained at the Walton Institute – get to make largely unfettered pay and promotion decisions. Under Wal-Mart’s employment system, there is:

No criteria for making promotion selections;

No oversight or systematic review of compensation or promotion decisions;

No posting of most promotion opportunities; and

No written information about the management trainee program, and no ability for hourly employees to apply for it.

In addition, Wal-Mart managers can:

Offer raises based on undefined “exceptional performances;”

Depart from starting pay rates for whomever they choose; and

Through a “tap on the shoulder,” decide who becomes a management trainee.

The result is a system in which male managers promote people like themselves who accept and perpetuate Wal-Mart’s male-dominated corporate structure.

Tellingly, Wal-Mart knew at least six years before this lawsuit was filed that its employment practices would likely be seen by courts as discriminatory and subject to class-wide relief, after it hired a prominent law firm to evaluate whether its policies promoted sex discrimination. Akin Gump found widespread gender disparities. “By one measure, the law firm found, men were five and a half times as likely as women to be promoted into salaried, management positions.” The law firm advised Wal-Mart to take remedial steps in 1995, but Wal-Mart ignored the advice and continued its practices.

As a legal matter, the Supreme Court has recognized that Title VII should apply when “an employer’s undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by impermissible intentional discrimination.” A strong corporate structure “creates the context – the policies, the decision-making systems, the work environment and culture – in which individual decisions are made.” These holdings support liability here.

Click here to read more about this landmark case and download AFJ’s comprehensive analysis.

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we discuss the overwhelming statistical evidence that demonstrates the degree to which women are denied opportunities for advancement at Wal-Mart.

At the time this lawsuit was filed in 2001, Wal-Mart divided the United States into 41 regions. Each region contained approximately 11 districts, and each district contained six to eight stores. Overall, there were more than 3,000 stores. The lawsuit also includes Sam’s Club, which is wholly owned and run by Wal-Mart.

Plaintiff’s statistical expert, Dr. Richard Drogin, found that women employees at Wal-Mart were paid less than men in every year, and in virtually every job, even when relevant non-discriminatory factors were considered. This pattern was found in every one of the 41 Wal-Mart regions. Moreover, the disparity in pay between comparably employed women and men has increased every year since 1997. Strikingly, this disparity exists despite the fact that women, on average, have longer tenure at Wal-Mart – 4.47 years v. 3.13 years – and higher performance ratings.

The following table demonstrates the pay and promotion differential for field management positions and the three largest hourly job categories in 2001, the year this lawsuit was filed.

Click to enlarge

The massive disparities between men and women in these statistics support a prima facie case of employment discrimination. One reason for this is the stark break between hourly department managers, the vast majority of whom are women, and the next management level up, where employees are trained for salaried management positions. (See the entries above and below the black line in the table.) To move upward, an employee at Wal-Mart needs to receive a discretionary “tap on the shoulder” from upper-level management, which is overwhelmingly male. Women cannot apply for this promotion. Overall, if plaintiffs’ class certification is upheld, they will have a strong case of pattern-or-practice or disparate impact discrimination.

Indeed, Wal-Mart has among the worst records of American retailers in the percentage of women in management, prompting the company’s Executive Vice President for People to say that “we are behind the rest of the world.” Wal-Mart had a far lower percentage of female managers in 2001 than their closest competitors had in 1975. When this lawsuit was filed, women comprised 34.5 percent of Wal-Mart’s managers, compared to 56.5 percent of comparable retailers’ managers. One of plaintiffs’ experts put the odds that this discrepancy can be explained by chance as “less than one chance in many billions.”

Plaintiffs’ statistics demonstrate a clear pattern of nationwide discrimination that demands class certification in this case.

Click here to read more about this landmark case and download AFJ’s comprehensive analysis.

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we highlight some of the declarations from women who described the deep-seated sexism that is pervasive among Wal-Mart managers. For example:

Senior management for Sam’s Club, a Wal-Mart affiliate, often referred to female store employees during Home Office executive meetings as “Janie Qs” and “girls.” When a female executive who was new to the company objected to the terms, the criticism was not well received and senior managers continued to use them.

A Wal-Mart company newsletter featured a photograph from a company event showing Wal-Mart’s Executive Vice President of Operations and Chief Operating Officer posing on a leopard-skin stiletto high-heel-shoe chair while surrounded by women singing and dancing.

When a female employee with five years at Wal-Mart and a Master’s Degree asked her department manager why her pay was less than that of a just-hired 17-year-old boy, the manager said: “You don’t have the right equipment.…You aren’t male, so you can’t expect to be paid the same.”

A manager told plaintiff Chris Kwapnoski that she needed to “doll-up” and “blow the cobwebs off” her make-up.

A store manager also told Kwapnoski that he gave a male associate a larger raise because the male associate had “a family to support.” This was a common refrain from Wal-Mart managers.

A male department manager told a female employee that male employees will always make more than female employees because “God made Adam first, so women would always be second to men.”

During a job interview to be a department manager, an assistant manager told Cleo Page that it was man’s world and that men control managerial positions at Wal-Mart.

A male support manager responded to a female employee’s request for a transfer to Hardware by asking, “[y]ou’re a girl, why do you want to be in Hardware?”

When a female district manager asked a male store manager why he always put female assistant managers in charge of Softlines, he responded “because that’s what women know.”

When a female employee with experience in Sporting Goods expressed interest in becoming a Sporting Goods department manager, a male assistant manager told her, “[y]ou don’t want to work with guns.”

When a female employee sought a position as a meat cutter, a male meat manager told her that Wal-Mart does not hire women as meat cutters. Similar arguments were used by managers to keep women out of the Electronics and Domestics departments.

The bias against women also pervades the Walton Institute, a company training center that “provides an educational environment for Wal[-M]art leaders from around the world to learn more about themselves and about Wal[-M]art’s unique company culture and how to sustain that culture.” At Institute sessions, participants in a discussion on diversity within the company were told that so few women were managers because “men have been more aggressive in achieving those levels of responsibility.” Company executives and managers also said that promoting women would require standards to be lowered.

Sam Walton, Wal-Mart’s founder, was an avid quail hunter and from the earliest days of the company invited top managers to an annual quail hunt. When women urged an alternative bonding experience, it was rejected as interfering with tradition. One woman who was hired from outside to be a Vice President of Sam’s Club described Wal-Mart as a “very tight, deep culture” and “very closed.” As she recalled, “I didn’t go hunting with them, I didn’t go fishing with them, I wondered if I had been able to do some of those things if I might have assimilated more quickly into the organization.” Female store managers were also required to attend business functions at strip clubs and Hooters. Wal-Mart’s Executive Vice President for People defended holding a district meeting at Hooters by claiming it was “one of the best places to meet and eat” in town.

Plaintiffs’ statistics provide a clear picture of the degree to which women are denied opportunities to succeed at Wal-Mart, but personal stories demonstrate the daily indignities that female employees must endure. For more information, click here to download AFJ’s special report on Wal-Mart v. Dukes.

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today’s installment introduces the personal stories of Wal-Mart employees Betty Dukes and Edith Arana. Dukes and Arana were enthusiastic employees who suffered the effects of the company’s discriminatory practices.

When Betty Dukes started at Wal-Mart, she was energetically committed to advancing within the company. She dreamed of working her way up from a $5-an-hour part-time cashier position into corporate management. Instead, she toiled for several frustrating years with very few opportunities for advancement. After discussing her concerns with a district manager, store managers retaliated against her. They wrote her up for returning late from breaks despite the fact that male colleagues evaded punishment after doing the same thing or after failing to clock out at all. Dukes later received a demotion and pay cut for asking a colleague to let her make change from a cash register, even though this was a common employee practice. The financial strain forced Dukes to move in with her mother.

Dukes has said she hopes this case will change Wal-Mart’s practice of blocking women from entering management, and will ensure women receive equal pay. A Baptist minister, she put her “Betty vs. Goliath” struggle in biblical terms, stating that, “David had five stones but only needed one.”

Edith Arana accepted a $7-an-hour job at Wal-Mart after 10 years in retail because she believed that Wal-Mart was “a family-based company” where “you can come in as a cashier, and the sky is the limit.” Arana often took on heavy workloads, was commended for going “beyond what is expected” and was praised for doing “an outstanding job filling in where she is needed—anywhere, anytime.” Nonetheless, management consistently denied her promotions and gave them to men with less experience.

Arana also tried to enlist in Wal-Mart’s assistant manager training program, but was consistently denied. A store manager promised to recommend Arana for the program but reneged after she was forced to take sick leave after a car accident. This missed opportunity became particularly important when Arana became the sole breadwinner for her husband and three children after her husband developed liver cancer. Arana felt that no matter how well she performed, store management would not allow her to advance because she was a woman. Eventually, her heavy workload led a doctor to order her to take leaves of absence. Arana called herself “destroyed and devastated” by her experience with Wal-Mart.

Dukes and Arana are two of the named plaintiffs in this case whose stories are representative of the many employees who suffered as a result of pervasive sex discrimination at Wal-Mart.

For more information, click here to download AFJ’s special report on Wal-Mart v. Dukes.

Alliance for Justice today released a comprehensive report on the biggest case of the U.S. Supreme Court’s 2010-11 term. The report analyzes the stakes and legal ramifications of Wal-Mart v. Dukes, which concerns the right of as many as 1.5 million female Wal-Mart employees to hold the retail giant accountable for a pattern of discrimination that pervades every region of the giant retailer’s U.S. operations. Oral arguments in the case are scheduled for Tuesday, March 29.

The report, “Wal-Mart v. Dukes: Will the Supreme Court Protect Wal-Mart’s Discrimination Against Women?” is available for download here.

In addition to describing key facts in the case, the report explains its broader implications not just for employment discrimination claims, but for all class actions against major corporations. According to the report, “If our nation’s largest employer can avoid liability for systemic discrimination across its nationwide chain of stores, it will undermine the equal rights of all women workers. Moreover, any ruling by the Roberts Court that makes it harder for employees to bring a class action will remove an important safeguard that protects workers when they suffer discrimination.”

Among the information and themes explored in the report are:

Whether Wal-Mart’s size and the sheer number of its stores, managers, and employees will prevent class certification for widespread gender discrimination. The report addresses this core issue in the case from a number of angles. It tells the personal stories of Betty Dukes and Edith Arana, excerpts declarations of more than 110 other women who filed stories of discrimination, and recounts statistical evidence that shows pay and promotion disparities in each Wal-Mart region and for virtually every job category. The report also explains how Wal-Mart created a structure that led to an upper-level management that consists of nearly all men, while women comprise the vast majority of lower-level employees. Tellingly, Wal-Mart has among the worst records of American retailers for hiring women in management, with its management practices stuck where its rivals were in the mid-1970s. Moreover, it was warned about its discriminatory practices six years before this case was filed by a law firm that found that men were “five and a half times as likely as women to be promoted.” Wal-Mart ignored the firm’s advice and continued its practices.

What’s at stake for the women at Wal-Mart? Class actions play an essential role in holding corporations accountable for their widespread unlawful behavior, particularly when the harm suffered by each individual is small relative to the larger discriminatory picture. As a result of the relative disadvantages of filing claims, most plaintiffs who lose at the class certification stage do not pursue individual suits, which, even if successful, would not force Wal-Mart to change its discriminatory practices. Thus, as the report states: “If the Supreme Court limits access to a class action in this case, it will enable Wal-Mart to essentially rob its women employees of fair wages without serious legal consequences.”

What’s at stake for American workers? If the Supreme Court decertifies the class action here, it will make it more challenging for other plaintiffs to bring class actions. Depending on the Court’s reasoning, a decision favoring the corporation could make it harder for class actions to be filed against other large employers with many outlets, managers, and employees. The Supreme Court might also undermine the availability of back pay for injured class victims.

Will the Roberts Court buck or continue its pro-corporate trend? Powerful corporations like Wal-Mart have consistently enjoyed a home-field advantage when litigating in front of the Roberts Court. Since 1953, corporate interests won 42 percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice Roberts’ first five years. Just last term, the Roberts Court ruled in favor of the side supported by the U.S. Chamber of Commerce in 13 of 16 cases. The U.S. Chamber, and a host of other corporate interests, are supporting Wal-Mart in this case.